Mosmat Munni Devi vs National Insurance Company ...
2021 Latest Caselaw 3747 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 435 of 2006
                            ........

1. Mosmat Munni Devi, Widow of Dilip Ram

2. Binda Devi, W/o Dhanu Ram, Both R/o Village + P.O. Hosir, P.S.- Gomia, District- Bokaro

3. Amar Kumar .... ..... Appellants Versus

1. National Insurance Company Limited.

2. Ram Narayan Thakur, S/o Late Jagdeo Thakur, R/o Village- Makoli, P.O + P.S.- Chandrapura, District- Bokaro

3. Naveen Kumar Thakur, S/o Ram Nandan Thakur, R/o Village- Makoli, P.O + P.S.- Chandrapura, District- Bokaro.

.................Respondents

4. Roma Kumari

5. Neelam Kumari

6. Mili Kumari All (Respondent Nos.4 to 6), D/o Late Dilip Ram

7. Vikki Kumar

8. Amar Kumar All (Respondent Nos.7 to 8), S/o Late Dilip Ram .... Minor appellants / Performa Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellants : Mr. Atanu Banerjee, Advocate.

: Ms. Lokeshwari Banerjee, Advocate.

For the Res.-Insurance Co. : Mr. Alok Lal, Advocate.

........

31/01.10.2021.

Heard, learned counsel for the appellants, Mr. Atanu Banerjee assisted by Ms. Lokeshwari Banerjee and learned counsel for the respondent- National Insurance Company, Mr. Alok Lal.

The claimants are the appellants before this Court and the instant appeal has been preferred against the judgment dated

30.09.2002 and decree dated 08.10.2002 passed by 1st AddI. Dist. Judge-cum-M.V.A. Claims Tribunal, Bermo at Tenughat in M.V. Claims Case No.26 / 25 of 1997, whereby the claimants have been awarded compensation to the tune of Rs.2,04,000/-, out of which Rs.50,000/- has been paid as interim compensation under Section 140 MV Act and the remaining amount of Rs.1,54,000/- to be paid within one month from the date of award dated 30.09.2002 by the

O.P.No.-1 i.e. owner of the offending Truck bearing registration No. BR13B-0234G, failing which the claimants/appellants are granted liberty to realise the same through the process of the court with interest @ 9% per annum from the date of filing of the claim petition.

Learned counsel for the appellants has submitted that the present miscellaneous appeal has been preferred by the claimants namely, Mosmat Munni Devi, W/o late Dilip Ram, Binda Devi W/o Dhanu Ram and Amar Kumar, S/o late Dilip Ram by impleading Roma Kumari, Neelam Kumari, Mili Kumari, Vikki Kumar and Amar Kumar, all sons of late Dilip Ram as proforma-respondents,for enhancement of the award and also for direction of this Court to indemnify the award by the National Insurance Company Limited as the offending vehicle bearing registration No. BR-13B-0234G was duly insured before the National Insurance Company Limited at the time of accident.

Learned counsel for the appellants has placed reliance upon Sections 147 and 149 of the Motor Vehicles Act and further placed reliance upon the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh & Others, reported in (2004) 3 SCC 297 at Paras-42 to 49 and para-110 which may profitably be quoted hereunder: -

"42. We may also take note of the fact that whereas in Section 3 the words used are 'effective licence', it has been differently worded in Section 149(2) i.e. ' duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks.

43. A provision of a statute which is penal in nature vis-`- vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently.

44. The words 'effective licence' used in Section 3, therefore, in our opinion cannot be imported for sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words

'duly licensed' used in sub-section (2) of Section 149 are used in past tense.

45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vechiles Act and the rules framed thereunder despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of thirty days from the day of its expiry.

46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.

47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.

48. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3) a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a

judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.

49. Such a breach on the part of the insurer must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.

110. The summary of our findings to the various issues as raised in these petitions are as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.

(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.

(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.

(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.

(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable

and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.

(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."

Learned counsel for the appellants has further submitted that admittedly deceased, Dilip Ram was struck by a standing Truck bearing registration No. BR-13B-7215G on 28.04.1997 at 5.15 A.M. and died on the spot while he was sleeping on a bench at his Hotel,. The said standing Truck was dashed by Dumper carry coal bearing registration No. BR-13B-0234G (offending vehicle), which was registered in the name of respondent no.2, Ram Narayan Thakur. The deceased Dilip Ram died leaving behind wife/widow, old mother and five minors' children (three daughter and two sons), as such, the learned Tribunal has not awarded just and fair compensation.

Learned counsel for the appellants has further submitted that though the deceased died in a motor accident on 28.04.1997 claiming himself to the owner of the line hotel and the income of the deceased was claimed to be Rs.2,000/- to Rs.2,500/- per month, but, the learned Tribunal in absence of any documentary evidence has considered the income of the deceased to be Rs.1,500/- per month and thus computed the compensation to the tune of Rs.2,04,000/-, as such, this court may reconsider the same and compute the compensation afresh.

Learned counsel for the appellants has submitted that the learned Tribunal has wrongly deducted the income of the deceased on personal and individual expenses and also, the future prospect of the deceased has not been considered by the learned Tribunal in view of the judgment passed by the Apex Court, as such, this court may consider the same in accordance with law.

Learned counsel for the appellants has further submitted that Hon'ble Apex Court in the case of Chameli Devi & Others Vs. Jivrail Mian & Others reported in 2019 (4) TAC 724 SC, has considered the income of a carpenter to be Rs.5,000/- in absence of any documentary evidence, who lost his life on 02.01.2001,whereas in the present appeal, the deceased was the owner of line hotel and no contrary evidence has been brought on record by the Insurance Company against the claim of Rs.2,000/- to Rs.2,500/- per month and the learned Tribunal has considered the income of the deceased to be Rs.1,500/- per month, as such, the same may be enhanced and accordingly, computation may be made on the basis of the judgment passed by the Apex Court in the case of Sarla Verma (Smt.) & Others Vrs. Delhi Transport Corporation & Another reported in (2009) 6 SCC 121 (Paras-30 & 42) and in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 and also, interest may be granted from the date of filing of the claim application in accordance with law.

Learned counsel for the appellants has further submitted that admittedly the offending vehicle bearing registration No.BR13B- 0234G was duly insured before the National Insurance Company Limited, as such, it was incumbent upon the learned Tribunal to direct the National Insurance Company to indemnify the award and may recover the same from owner of the offending vehicle in view of the principle laid down by the Apex Court in case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others, reported in (2004) 13 SCC 224 at Paragraph-8,which may profitably be quoted hereunder:-

"8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit

Kaur case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs."

Learned counsel for the appellants has further relied upon the judgment passed by the Hon'ble Apex Court in the case of Shamanna & Another vs. Divisional Manager, Oriental Insurance Company Limited & Ors. reported in (2018) 9 SCC 650 wherein the case of Nanjappan(supra) has been reiterated. Paras-14 and 15 of the Shamanna (supra) may profitably be quoted hereunder: -

"14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan wherein this Court held that:

"8....For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."

15. In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. The first respondent insurance company shall pay the enhanced compensation to the appellants/claimants

along with the accrued interest and the insurance company shall recover the same from the owner of the vehicle. No costs."

Thus, learned counsel for the appellants has submitted that for just and fair compensation amount may be enhanced and National Insurance Company Limited may be directed to indemnify the Award with interest and after satisfying the award, the Insurance Company may be recovered the same from owner of the offending vehicle.

Learned counsel for the National Insurance Company Limited, Mr. Alok Lal has submitted that the appeal under Section 173 of the Motor Vehicles Act is not maintainable in the present fact and circumstances of the case. The appeal under Section 173 of the Motor Vehicles Act has to be preferred by any persons aggrieved by an order of a claim Tribunal but in the present case owner has been directed by the learned Tribunal to satisfy the award to the claimants, as such, aggrieved person may be owner of the offending vehicle and not the claimants.

Learned counsel for the Insurance Company has further relied upon the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors.(Supra) at Para- 108,which may profitably be quoted hereunder:-

"108. Although, as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent."

Learned counsel for the Insurance Company has further submitted that the order passed by the Apex Court in the case of Swaran Singh (Supra) invoking Articles 142 of the Constitution of India, which the High Court cannot invoke while deciding an appeal under Section 173 of the Motor Vehicles Act. Further, no reason has been assigned by the claimants/appellants that what is the difficulty of the claimants/appellants in recovering the compensation from the judgment debtor i.e. owner of the offending vehicle, as such, this

Court may not interfere with the same.

Learned counsel for the Insurance Company has also relied upon the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Raj Kumari (Smt.) & Others, reported in (2007) 12 SCC 768 at Para-14,which may profitably be quoted hereunder:-

"14. In the instant case the insurer was a private limited company doing transport business. There was no material placed before the High Court to show that the claimants would have any difficulty in recovering the awarded amount from it. That being so, the High Court's order is modified to the extent that the insurer shall pay an amount of Rs.50,000/- with interest awarded to claimants. The balance has to be paid by the insured."

Learned counsel for the Insurance Company has also relied upon the judgment passed by the Apex Court in the case of Deddappa & Ors. Vs. The Branch Manager, National Insurance Co. Ltd., reported in (2008) 2 SCC 595 at Para-25, which may profitably be quoted hereunder: -

"25. A beneficial legislation as is well known should not be construed in such a manner so as to bring within its ambit a benefit which was not contemplated by the legislature to be given to the party. In Regional Director, ESI Corpn. v. Ra- manuja Match Industries [(1985) 1 SCC 218: 1985 SCC (L&S) 213 : AIR 1985 SC 278] this Court held : (SCC pp. 224-25, para 10) "10. ... We do not doubt that beneficial legislations should have liberal construction with a view to imple- menting the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statu- tory benefit to those who are not covered by the scheme." We, therefore, agree with the opinion of the High Court."

Learned counsel for the Insurance Company has thus submitted that in view of aforesaid judgments passed by the Apex Court and since nothing has been brought on record by the appellants with regard to the difficulty in recovering the amount from owner of the offending vehicle,as such, this Court may not interfere with the same and claimants may be directed to recover the same from owner of the offending vehicle.

Learned counsel for the Insurance Company has thus submitted that in the case of Swaran Singh (Supra), which was passed invoking Articles 142 of the Constitution of India and in the case of Raj Kumari (Smt.) & Others (Supra), whereby the owner has been directed to indemnify the award and the award was passed invoking Article 142 of the Constitution of India, as such, this Court may not pass such order in an appeal under Section 173 of the Motor Vehicles Act in the absence of anything brought on record by the appellants, stating the difficulty in recovering the amount from owner of the offending vehicle.

After hearing learned counsel for the parties and on the basis of materials available on record, it appears that appeal has been preferred under Section 173 of the Motor Vehicles Act by the claimants for enhancement of the award and also for a direction to recover the same from the insurer instead of insured owner of the offending vehicle in a benevolent legislation, as the claimant is aggrieved of less compensation and recovery has been made difficult for widow, old mother and non-earning daughter and sons from owner of the offending vehicle.

It appears that in the miscellaneous appeal, notice has been issued upon the respondents dated 05.07.2007.

So far, respondent no.1 i.e., National Insurance Company Limited is concerned, the notice was validly served and the same was considered valid by this court. The notice upon respondent nos. 2 & 3 i.e. owner and driver of the offending vehicle, are concerned, the same was not served as the respondent nos. 2 & 3 are not residing at the given address. Thereafter, fresh notice was again issued on 04.02.2010 on correct and present address of respondent no.2, which was again returned with a postal endorsement that no such person is residing on the same address.

Thereafter, substituted service of notice has been ordered on 28.03.2011. A supplementary affidavit dated 10.05.2011 was filed along with the paper Hindi Daily "Aaj" published from Ranchi circulated in Chandrapura Police Station in the District of Bokaro to

demonstrate that the service of notice has been affected, which was recorded in the order dated 23.01.2012 and service of notice has been deemed to be sufficient.

Thereafter, the matter was listed on 16.05.2012, where two weeks' time was allowed to the learned counsel for the petitioner to file requisites etc. under the ordinary process for fresh service of notice upon the respondent nos.2 & 3 at their correct and present address.

It appears that as per the service report, notice upon respondent no.2 has been received by his wife, who is the owner of the offending vehicle and thus it was considered to be validly served vide order dated 03.09.2012 and it was fixed for ex-parte vide order dated 25.10.2013, but nobody appears on behalf of respondents. However, the matter was adjourned for one or another reason. Ultimately the instant matter was heard by this Bench on 02.06.2020 and thereafter, the matter was referred before the Hon'ble Chief Justice for constituting Larger Bench and Hon'ble Division Bench vide order dated 04.02.2021 directed this Court to pass an order and thus, the matter was again listed before this Court.

The admitted facts are as under: -

The deceased, Dilip Ram was sleeping on a bench in his hotel and stuck by standing Truck bearing registration No.BR13B-7215G on 28.04.1997 at 5.15 A.M and died. The said Truck was dashed by a dumper carrying coal bearing registration No. BR-13B-0234G (offending vehicle), which belongs to respondent no.2, Ram Narayan Thakur @ Ram Nandan Thakur, S/o Late Jagdeo Thakur, resident of village- Mokoli, P.O. + P.S.- Chandrapura, District- Bokaro. The deceased died at the age of 32 years, leaving behind widow, five minor's children and old mother. The offending vehicle bearing registration No. BR-13B-0234G was duly insured before the National Insurance Company Limited vide Insurance Policy No.96/4301118, which was valid from 09.09.1997 to 08.01.1998 and the accident took place on 28.04.1997, which was within the period of the insurance.

So far, the income of the deceased is concerned, the claimants/appellants have claimed it to be Rs.2,000/- to Rs.2,500/- per month being the owner of line hotel, but in absence of any documentary evidence, the learned Tribunal has considered the income of the deceased to be Rs.1500/- who died in an accident which took place on 28.04.1997.

This Court has heard the submissions of learned counsel for the appellants and the judgment cited by the Apex Court in the case of Chameli Devi (Supra), wherein the income of a carpenter has been considered to be Rs.5,000/- in absence of any documentary evidence, who lost his life in an accident on 02.01.2001 by the Apex Court, but in the present case, the occurrence is of dated 08.04.1997 and the claim was with regard to Rs.2,000/- to Rs.2,500/- per month and the learned Tribunal has considered it to be Rs.1,500/- per month.

This court is of the opinion after taking note of the number of dependents i.e., wife, five children and mother, the income would be just and proper if it would be considered Rs.2,000/- per month, which is on the lower side of the claim made by the claimants. Thus, the income of the deceased is considered to be Rs 2,000/- per month.

Since, the deceased has died at the age of 32 years, as such, multiplier of 16 is applicable in view of the judgment passed by the Apex Court in the case of Sarla Verma(Supra) (Para-42) and the deceased was having seven dependents except himself i.e. wife, five children and old mother, the deduction under personal and living

expenses ought to have been 1/5th in view of the judgment passed by the in the case of Sarla Verma (Supra) (Para-30).

So far, future prospect is concerned, deceased was self- employed person having his line hotel, as such, in view of the judgment passed by the Apex Court in the case of Pranay Sethi (supra), deceased died below the age of 40 years, the future prospect of the deceased ought to have been 40%.

Under the conventional head, the claimants are entitled for Rs.70,000/- i.e. Rs. 40,000/- for loss of consortium, Rs. 15,000/- for

funeral expenses and Rs. 15,000/- for loss of estate, in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para-59.8).

Accordingly, this Court is computing the compensation afresh:-

Income                             Rs.2,000/- per month
Annual Income                      Rs. 2,000/- x 12 = Rs. 24,000/-
40% future prospect                Rs. 24,000/- + Rs. 9,600/-
Pranay Sethi (Supra)(Para-59.4)    = Rs. 33,600/-

1/5th deduction towards personal Rs. 33,600/- x 1/5 = Rs. 6,720/- and living expenses Sarla Verma (Supra)(Para-30) Total Income Rs. 33,600/- - Rs. 6,720/- = Rs. 26,880/- Multiplier of 16 (as the deceased Rs. 26,880/- x 16 = Rs. 4,30,080/- was in the age group of 31-35 years) Sarla Verma (Supra) (Para-42) Conventional Head Rs. 70,000/- i.e. Rs. 15,000/- as loss of Pranay Sethi (Supra)(Para-59.8) estate, Rs. 40,000/- as loss of consortium and Rs. 15,000/- as funeral expenses.

Total Compensation Amount Rs. 4,30,080/- + Rs. 70,000/-

= Rs. 5,00,080/-

Amount Paid under Section 140 of Rs. 5,00,080/- - Rs. 50,000/-

= Rs. 4,50,080/-

the M.V. Act

The amount of compensation to the tune of Rs. 4,50,080/- shall be paid to the claimants along with interest @ 7.5 % per annum from the date of filing of the claim application in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (12) SCC 208.

This court has perused the judgments relied upon by both the parties. The Apex court in the case of Shamanna & Another(supra) at para-5, has reiterated the detailed guidelines issued in the case of Swaran Singh(supra),wherein the Apex court has held that the insurer has to indemnify the amount of compensation to the third party, even in case of violation of the terms and condition of the policy and the insurance company may recover the same from the insured. The relevant paragraph is profitably quoted hereunder; -

"5. In the case of third-party risks, as per the decision in National Insur- ance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , the insurer had to indem- nify the compensation amount payable to the third-party and the insurance company may recover the same from the insured. Doctrine of "pay and re- cover" was considered by the Supreme Court in Swaran Singh case [Na- tional Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] wherein the Supreme Court examined the liability of the insur- ance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third-party risks, the insurer has to indemnify the compensation amount to the third-party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability vis-à-vis the claims of third parties, the Supreme Court is- sued detailed guidelines as to how and in what circumstances, "pay and re- cover" can be ordered. In para 110, the Supreme Court summarised its con- clusions as under : (SCC pp. 341-42) "110. The summary of our findings to the various issues as raised in these petitions is as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providing com- pulsory insurance of vehicles against third-party risks is a social wel- fare legislation to extend relief by compensation to victims of acci- dents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of Section 149, has to be proved to have been com- mitted by the insured for avoiding liability by the insurer. Mere ab- sence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences avail- able to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reason- able care in the matter of fulfilling the condition of the policy re- garding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to avoid their li- ability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.

(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liabil- ity towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in inter- preting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow de- fences available to the insurer under Section 149(2) of the Act.

(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.

(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.

(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to prop- erty of third-party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide dis- putes inter se between the insurer and the insured. The decision ren- dered on the claims and disputes inter se between the insurer and in- sured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for en- forcement and execution of the award in favour of the claimants.

(x) Where on adjudication of the claim under the Act the Tri- bunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third-party under the award of the Tri- bunal. Such determination of claim by the Tribunal will be enforce- able and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.

(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."

(emphasis supplied)

The owner of the offending vehicle is not appearing and ex-

parte proceeding has been initiated against owner, as such, in a benevolent legislation, it would be proper to consider the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others (supra) as well as Shamanna & Another vs. Divisional Manager, Oriental Insurance Company Limited &

Ors. reported in (2018) 9 SCC 650, as the claimants in the present case are the widow, minor children and old mother. It would be proper to direct the National Insurance Company Limited to indemnify the award along with the interest within a reasonable time as the accident is of dated 28.04.1997. However, the Insurance Company shall recover the same from owner of the offending vehicle in the view of Nanjappan & Others (supra).

Accordingly, this Court allow this Miscellaneous Appeal with a direction to the National Insurance Company Limited to indemnity the same within a reasonable period, as the accident is of dated 28.04.1997.

(Kailash Prasad Deo, J.) Jay/-